Operation StreamlineRevisiting a program leading to mass criminalization, incarceration of undocumented migrants

Immigration reform advocates decried what they described as the human costs, fiscal waste, and ineffectiveness of a decade of mass criminalization and incarceration for improper entry and re-entry into the United States.

Operation Streamline, launched in 2005 as part of DHS’s Secure Border Initiative, has resulted in a dramatic growth of the improper entry misdemeanor prosecutions, which it was designed to facilitate – and, at the same time, has also led to a substantial increase in felony re-entry prosecutions in federal district courts along the border. Prior to Operation Streamline, few were prosecuted for improper entry or re-entry.

These claims are documented through data analysis and dozens of interviews in the new report, Indefensible: a Decade of Mass Incarceration of Migrants Prosecuted for Crossing theBorder, released by Justice Strategies and Grassroots Leadership.

Justice Strategies, a pro-immigration advocacy group, notes that while the Streamline courts have been scaled back in several districts, the legacy continues in federal courts, and includes related massive immigration prosecutions for both improper entry and felony re- entry. The costs associated for just the incarceration of migrants is conservatively estimated around $7 billion since 2005, not including the drain on court resources or human lives.

Justice Strategies argues that the criminalization of migration has failed to deliver on its intended promise of deterrence. There is no credible evidence to suggest that incarceration deters migration, which is more strongly motivated by economic circumstances and family responsibilities. Data analysis in Indefensible finds no apparent correlation between apprehensions, which began falling in 2000, and prosecutions, which began rising in 2004. Trend analysis suggests that these prosecutions are tied to political directives, not migration patterns, the group says.

The books offers evidence that shows that in 2015, 49 percent of all federal prosecutions were made up of what is essentially a crime of trespassing, in the form of misdemeanor improper entry and felony re-entry prosecutions. In 2015, almost 70,000 migrants — including some who may have valid asylum claims — were criminally prosecuted for improper entry and re-entry, and nearly three quarters of a million people have been prosecuted for just these two offenses in federal courts since 2005.

“Expanded migrant prosecutions have become the newest contributor to mass incarceration and the sentenced migrants are straining an already massively overcrowded federal prison system,” said Judith Greene, report author and director of Justice Strategies. “The mass criminalization, prosecution, and incarceration of migrants is a human rights disaster – a ineffective, wasteful policy that has failed by every measure.”

The report documents the different ways in which border states have responded to migration, with California’s focus on fewer and more serious cases in contrast to mass prosecutions in Texas and Arizona. The differences highlight the lack of a coherent approach, and illustrate that migration criminalization policy is a discretionary government initiative that has imposed considerable human and fiscal costs without producing positive outcomes. The report argues that the policies can be revamped back down simply by executive action, and that immigration violations were historically treated as civil offenses and governed by immigration courts and administrative code.

“The movement to end mass incarceration must not leave migrants behind,” said Bethany Carson, report author and Grassroots Leadership immigration organizer and researcher. “Just as the Department of Justice has begun to remedy the failed war on drugs, Attorney General Loretta Lynch and the U.S. Attorneys of federal court districts at the southern border must take steps to end the inhumane and wasteful mass prosecution and incarceration of migrants.”

Among the report’s findings:

• Mass courtroom proceedings in which up to eighty shackled migrants have been arraigned, convicted, and sentenced for improper entry, all within a two to three hour timespan, raising serious legal issues.
• A national federal court docket 49 percent of which was occupied in 2015 with the prosecution of 70,000 migrants for improper entry and re-entry, and impacting the prosecution of more serious federal crimes.
• A federal prison population 23 percent of which is now composed of non-citizens, although these non-citizens represent only 7 percent of the U.S. population.
• Current average sentences of seventeen months for felony re-entry, according to the U.S. Sentencing Commission, in addtion to what in any case will ultimately be civil deportation proceedings for those convicted.
• Federal contracts for thirteen new “Criminal Alien Requirement” prisons provided to private prison corporations from 2000-2013.